United States Court of Appeals For the First Circuit
No. 18-1896
UNITED STATES OF AMERICA,
Appellee,
v.
RAUL ALEXANDER, a/k/a The Old Man,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Leo T. Sorokin, U.S. District Judge]
Before
Howard, Chief Judge, Lynch and Thompson, Circuit Judges.
James B. Krasnoo and Krasnoo, Klehm & Falkner LLP on brief for appellant. Randall E. Kromm, Assistant United States Attorney, and Andrew E. Lelling, United States Attorney, on brief for appellee.
April 30, 2020 LYNCH, Circuit Judge. Raul Alexander, a citizen of
Curaçao, was charged with conspiring to manufacture, distribute,
and import cocaine into the United States. Alexander moved to
dismiss the indictment, arguing that recordings done by a
confidential witness ("CW") showed that the government could not
prove an element of the offense either to the grand jury or before
trial. Specifically, that element was that Alexander knew or
intended that the cocaine would be sent to the United States. From
that premise, he argued that the federal courts lack jurisdiction;
venue is improper; and the government engaged in "outrageous
misconduct" by attempting to manufacture jurisdiction. The
district court denied his motion to dismiss "for the reasons stated
in the government's opposition," which included the government's
explanations that the recorded conversations and the CW's
anticipated testimony constituted sufficient evidence to prove
that Alexander knew or intended that the drugs were destined for
the United States.
After the district court denied his motion to dismiss
and before trial, Alexander entered into a conditional plea
agreement with the government under Fed. R. Crim. P. 11(a)(2).
The plea agreement allowed him to appeal the denial of his motion
to dismiss if he were sentenced to more than thirty-six months in
prison. The district court sentenced Alexander to sixty months'
- 2 - imprisonment. Alexander appealed, renewing the arguments made in
his motion to dismiss. We affirm the district court's denial.
Alexander also challenges the reasonableness of his
sentence. He argues that his prison sentence is longer than
necessary, especially in light of the shorter thirty-six-month
sentence given to his co-defendant. This argument is meritless.
The district court articulated a plausible reason for the sentence
which explained the difference between the defendants' respective
sentences, and Alexander's below-guideline sentence is reasonable.
I.
A. Facts
Traditionally, we "rebuff efforts to use a motion to
dismiss as a way to test the sufficiency of the evidence behind an
indictment's allegations." United States v. Guerrier, 669 F.3d 1,
4 (1st Cir. 2011). "What counts in situations like this are the
charging paper's allegations, which we must assume are true." Id.
at 3-4. However, Alexander's motion to dismiss was based on the
CW's recorded conversations, the government opposed his motion
with further evidence of the CW's anticipated testimony, and the
district court denied the motion "for the reasons stated in the
government's opposition."
On appeal, the government continues to acquiesce in the
district court's acceptance of this procedure and urges us to use
our "ordinary sufficiency standard." When reviewing the denial of
- 3 - Alexander's motion to dismiss, therefore, we draw our facts from
the evidence that was in front of the district court when the
motion was decided, including transcripts of conversations
recorded by the CW and a report by the Drug Enforcement
Administration ("DEA") detailing the CW's anticipated testimony.
Alexander pleaded guilty, so when evaluating the
reasonableness of Alexander's sentence, "we draw the relevant
facts from the plea agreement, the change-of-plea colloquy, the
undisputed portions of the presentence investigation report
('PSR'), and the transcript of the disposition hearing." United
States v. Gomera-Rodríguez, 952 F.3d 15, 16 (1st Cir. 2020)
(quoting United States v. Hassan-Saleh-Mohamad, 930 F.3d 1, 5 (1st
Cir. 2019)).
The following facts are common to both inquiries. In
July 2015, a CW from the United States began recording phone and
text conversations with Alexander's co-defendant, Adalgisa Zefin
del Rosario-Jimenez, who lived in Curaçao.1 The conversations were
in Spanish.
The first recorded call occurred on July 23, 2015, when
the CW was in the United States and Rosario-Jimenez was in Curaçao.
The CW asked Rosario-Jimenez how best to call her from the United
1 Alexander's brief spells his co-defendant's last names "Rosario-Jiminez." We adopt the spelling "Rosario-Jimenez," which is supported by the weight of the record evidence.
- 4 - States and gave her a U.S. number she could call if she preferred.
During the call, Rosario-Jimenez told the CW that she could sell
between ten and twelve kilograms of heroin every two weeks. She
also offered that she could sell 100 kilograms of cocaine. The
drugs could be delivered in Curaçao, Panama, or, for an additional
fee, the United States.
Between August and October 2015, Rosario-Jimenez and the
CW exchanged text messages using WhatsApp about a proposed sale of
heroin and cocaine by Rosario-Jimenez to the CW. The drugs would
be exchanged in Curaçao and thereafter transported to the United
States.
On November 16, 2015, the CW proposed to Rosario-Jimenez
over text message that they meet in Curaçao in the first week of
December. They decided that the deal would be for cocaine only,
and on November 18, 2015, discussed methods of transportation of
the cocaine to the United States.
On December 3, 2015, the CW met with Rosario-Jimenez in
Curaçao to complete the transaction. The CW recorded three of
their conversations that day. In the first conversation, Rosario-
Jimenez talked about her past experiences importing drugs into the
United States. She described how "mules" would swallow capsules
of drugs called "eggs" or "bullets" and then fly to the United
States on commercial airline flights. She admitted that she had
once sent heroin to a former boyfriend in Lawrence, Massachusetts,
- 5 - and on another occasion had sent heroin to Boston by way of the
Dominican Republic.
Rosario-Jimenez stated to the CW that she "worked with
one person as a source of supply for cocaine." She then called
the person she identified as that source in front of the CW and
said to the source: "You remember what we were talking about? That
guy is here."
During the second recorded conversation, Rosario-Jimenez
drove with the CW to Alexander's house to complete the cocaine
transaction. The recording continued after they entered
Alexander's home. This is the only recording where Alexander was
present. On the drive over, the CW realized for the first time
they were not going to Rosario-Jimenez's house and expressed
concern about going to a stranger's house. She reassured the CW
that they would be safe and that she and Alexander do business
together.
Once at the house, Alexander, Rosario-Jimenez, and the
CW began talking. Rosario-Jimenez told the CW, in front of
Alexander, that people in Curaçao had been afraid to deal with
customers from the United States since someone was arrested for
selling to an undercover law enforcement officer. Alexander
indicated that he was familiar with that case and noted that the
person who was arrested was merely holding the drugs for someone
else.
- 6 - The CW then mentioned that heroin was selling for a high
price in Boston. Alexander asked if the CW could send him two
U.S. drug mules, ideally ones that could pose as a couple to avoid
arousing suspicion. He suggested the possibility of an on-going
arrangement where Alexander, the CW, and Rosario-Jimenez would
import controlled substances into Massachusetts. The profits from
this proposed deal would be split three ways between them.
The CW then told Rosario-Jimenez and Alexander that the
money needed to complete the transaction was located off-site.
The CW and Rosario-Jimenez left, ostensibly to retrieve the money.
The third conversation recorded by the CW occurred
during the CW's car ride with Rosario-Jimenez after meeting with
Alexander. During that conversation, Rosario-Jimenez told the CW
that she had talked to Alexander for an hour to get him to
participate in the cocaine deal.
After Rosario-Jimenez and the CW left Alexander in his
house, law enforcement officers arrived and searched Alexander's
house. They found approximately eleven kilograms of cocaine, a
rifle, and drug paraphernalia, including the press to make drugs
into "eggs" that then could be smuggled. Alexander was arrested
outside his house and was found with a pistol in his waistband,
along with a magazine and four rounds of ammunition. Rosario-
Jimenez was arrested the same day.
- 7 - B. Procedural History
Alexander and Rosario-Jimenez were indicted on January
13, 2016, in the U.S. District Court for the District of
Massachusetts for conspiring to manufacture and distribute cocaine
for unlawful importation into the United States and conspiring to
unlawfully import cocaine into the United States in violation of
21 U.S.C. §§ 963, 952, 959(a), and 960(b)(1)(B). They were also
charged with forfeiture under 21 U.S.C. §§ 853 and 970.
Alexander was extradited from Curaçao and arrived at
Boston Logan International Airport on or about May 31, 2017.
Alexander is not a citizen of the United States and had never
resided in this country.
Alexander filed a motion to dismiss the charges against
him on June 5, 2018. He attached to the motion transcripts of the
CW's recorded conversations, which he had received in discovery.
He contended that the recorded conversations "present no evidence
to demonstrate that Alexander knew that the cocaine he intended to
distribute in Curaçao to the [CW] was to be imported to the United
States." As a consequence, "the United States cannot prove an
essential element of the offense with which Alexander is charged."
The grand jury, upon "information and belief," could not have
returned a valid indictment, and the government would not have
sufficient evidence to support the charge at trial. In addition,
"[n]either jurisdiction nor venue exists in the District of
- 8 - Massachusetts or anywhere else in the United States." And any
claimed jurisdiction is the result of "outrageous government
misconduct" because federal agents engaged in "[j]urisdictional
entrapment" by "creat[ing] the fiction of Boston as the destination
to which [the CW] claimed the drugs were going to be imported."
He argued that his motion could be addressed pretrial,2 and
requested an evidentiary hearing so that he could question the CW.
The government argued that Alexander's issues were
better decided post-trial but also opposed his motion to dismiss
on the merits and attached to its filing a copy of the DEA report
with the CW's anticipated testimony. The government argued that
it had sufficient evidence about which "the government believes
reasonable inferences can and should be drawn" to conclude that
Alexander knew and intended for the cocaine to be imported into
the United States, thereby defeating all of Alexander's related
legal challenges.
The district court denied Alexander's request for an
evidentiary hearing on his motion to dismiss on May 22, 2018. On
2 "A party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits." Fed. R. Crim. P. 12(b)(1). Motions based on improper venue, an error in the grand jury proceedings, and failure to state an offense must be raised pretrial "if the basis for the motion is then reasonably available and the motion can be determined without a trial on the merits." Fed. R. Crim. P. 12(b)(3).
- 9 - June 27, 2018, the district court denied the motion to dismiss
"for the reasons stated in the government's opposition."
On July 12, 2018, at what was scheduled to be the final
pretrial conference, the government and Alexander announced that
they had reached a deal for a conditional plea. Under the terms
of the plea agreement, Alexander retained the right to appeal the
denial of his motion to dismiss if he were sentenced to more than
thirty-six months' imprisonment. If his appeal were successful,
he could then withdraw his guilty plea. Under Fed. R. Crim. P.
11(a)(2), the district court was required to give its consent to
the condition placed on the plea agreement, and it did so.
Alexander was sentenced on September 13, 2018. The court
calculated a guideline sentencing range of 87 to 108 months'
imprisonment and between one and three years' supervised release.
Alexander had a Total Offense Level of 29 and a Criminal History
Category of I.
The government recited the facts it believed it could
have proved if the case had proceeded to trial. Alexander made
some minor objections to the government's description of the facts,
but both parties agreed that, even with the objections, the facts
were legally sufficient for the court to accept Alexander's plea.
The court imposed a below-guideline sentence of sixty months'
imprisonment and three years' supervised release.
- 10 - Alexander's co-defendant Rosario-Jimenez also pleaded
guilty to the same offense on May 31, 2017, over a year before
Alexander pleaded guilty. She had a Total Offense Level of 27 and
a Criminal History Category of I. Her guideline sentencing range
was lower than Alexander's because she was not found with a gun:
70 to 87 months' imprisonment and between one and three years'
supervised release. She was sentenced on September 6, 2017, to
thirty-six months in prison and three years of supervised release.
The same district court judge sentenced both defendants.
Following the imposition of his sentence, Alexander
timely appealed.
II.
Alexander makes a number of legal arguments that he
describes as jurisdictional. They all arise from the same alleged
flaw in the government's case: that the government has no evidence
that Alexander knew that the cocaine was going to be imported into
the United States. According to Alexander, a cascade of legal
issues arises as a consequence.
A. Waiver/Bar Argument
The government argues that we need not reach the merits
of Alexander's arguments because he waived them by pleading guilty:
At his Rule 11 hearing, after having been informed of the elements of the importation offense -- including the requirement of an agreement to import cocaine into the United States (or to distribute cocaine for purposes
- 11 - of importation) and his knowing and willful joining in that agreement, Alexander informed the district court that he was pleading guilty because "[he was], in fact, guilty." Alexander also affirmatively agreed that the undisputed facts set forth by the government were sufficient to provide a factual basis for the plea to importation.
(Alteration in original) (internal citations omitted).
There is some tension between Alexander's pleading
guilty because "he was, in fact, guilty," and the substance of his
motion to dismiss, which, in short, maintains that Alexander is
not guilty of the charged offense because he did not know the
cocaine was going to be imported into the United States. But that
tension is inherent in the plea agreement struck by the government
and the defendant.
The plea agreement states: "Defendant expressly and
unequivocally admits that he committed the crime charged in Count
I of the Indictment, did so knowingly and intentionally, and is in
fact guilty of that offense." In the next sentence it states:
Defendant's plea shall, with the U.S. Attorney's consent, be a conditional plea of guilty, reserving Defendant's right to appeal the denial of his Motion to Dismiss (Docket No. 102) pursuant to Fed. R. Crim. P. 11(a)(2), if he receives a sentence of more than 36 months of imprisonment. Defendant will have the right to withdraw his guilty plea should Defendant prevail on appeal.
Both the Supreme Court and this circuit have heard
waiver/bar arguments in conditional plea cases and rejected them.
- 12 - In Doggett v. United States, 505 U.S. 647 (1992), the defendant
entered a conditional guilty plea, "thereby securing the
Government's explicit consent to his reservation of 'the right to
appeal the adverse Court ruling on his Motion to Dismiss for
violation of Constitutional Speedy Trial provisions based upon
post-indictment delay.'" Id. at 658 n.3 (citation omitted). The
Supreme Court held that "[o]ne cannot reasonably construe this
agreement to bar Doggett from pursuing as effective an appeal as
he could have raised had he not pleaded guilty." Id. (emphasis
added).
Similarly, in United States v. Caraballo-Cruz, 52 F.3d
390 (1st Cir. 1995), this circuit began its analysis by looking to
Fed. R. Crim. P. 11(a)(2), the provision that permits conditional
plea agreements. Id. at 392. It held:
The import of this rule is open and obvious: it is designed to "ensure careful attention to any conditional plea," to "identify precisely what pretrial issues have been preserved for appellate review," and to husband scarce judicial resources by permitting a defendant fully to litigate hoarded issues while at the same time lessening the burden on busy district courts and sparing the sovereign the expense of trial.
Id. (citing Fed. R. Crim. P. 11 advisory committee's note).
"Having secured a plea by means of this accommodation, the
government cannot now retract its acquiescence. After all,
'[h]aving one's cake and eating it, too, is not in fashion in this
- 13 - circuit.'" Id. at 393 (alteration in original) (quoting United
States v. Tierney, 760 F.2d 382, 388 (1st Cir. 1985)). For this
reason, we reject the government's argument that Alexander's
conditional guilty plea bars the jurisdictional arguments made in
his motion to dismiss or this appeal.
B. Merits of Alexander's Jurisdictional Arguments
Alexander's jurisdictional arguments fail on the merits.
Challenges to sufficiency of the government's evidence, the
court's jurisdiction, denial of a motion to dismiss based on venue,
and denial of a motion to dismiss based on outrageous government
misconduct are all reviewed de novo. See United States v. Tanco-
Baez, 942 F.3d 7, 15 (1st Cir. 2019) (sufficiency of the evidence);
United States v. Bravo, 489 F.3d 1, 6 (1st Cir. 2007)
(jurisdiction); United States v. Salinas, 373 F.3d 161, 164 (1st
Cir. 2004) (venue);3 United States v. Anzalone, 923 F.3d 1, 5 (1st
Cir. 2019) (outrageous government misconduct).
In sufficiency of the evidence challenges, we
"consider[] the evidence in the record 'in the light most favorable
to the prosecution.'" Tanco-Baez, 942 F.3d at 15 (quoting United
States v. Lara, 181 F.3d 183, 200 (1st Cir. 1999)). In venue
3 "When a defendant in a criminal case appeals from a venue determination, we review the trial court's legal conclusions de novo and its factual findings for clear error." Salinas, 373 F.3d at 164 (emphasis added) (citing United States v. Scott, 270 F.3d 30, 34 (1st Cir. 2001)).
- 14 - challenges, "we align the evidence of record in the light most
flattering to the venue determination." Salinas, 373 F.3d at 164.
1. Sufficiency of the Evidence
Alexander argues that the government cannot prove the
element of the charged offense that he intended or knew that the
cocaine would be imported into the United States. In sufficiency
of the evidence challenges, we consider whether the "body of proof,
as a whole, has sufficient bite to ground a reasoned conclusion
that the government proved each of the elements of the charged
crime beyond a reasonable doubt." Tanco-Baez, 942 F.3d at 15
(quoting Lara, 181 F.3d at 200).
"To prove a defendant's participation in a conspiracy,
the government must show two types of intent: the defendant's
intent to join the conspiracy and his intent to perpetrate the
underlying substantive offense." United States v. Rodríguez-
Milián, 820 F.3d 26, 31 (1st Cir. 2016). Alexander argues that he
did not have the intent or knowledge that the cocaine would be
unlawfully imported into the United States, as required by 21
U.S.C. § 959(a).4 "[C]onspiratorial agreement need not be express
4 When the conspiracy at issue in this case was active, § 959(a) stated: "It shall be unlawful for any person to manufacture or distribute a controlled substance . . . intending [or] . . . knowing that such substance or chemical will be unlawfully imported into the United States . . . ." 21 U.S.C. § 959(a) (amended 2016). This provision of the statute was amended to cover people "intending, knowing, or having reasonable cause to believe." Id. (currently in force) (emphasis added).
- 15 - so long as its existence can plausibly be inferred from the
defendants' words and actions and the interdependence of
activities and persons involved." United States v. Appolon, 715
F.3d 362, 370 (1st Cir. 2013) (alteration in original) (quoting
United States v. Boylan, 898 F.2d 230, 241-42 (1st Cir. 1990)).
The evidence is sufficient to support the inference that
Alexander knew the cocaine was destined for the United States.
Alexander discussed with Rosario-Jimenez and the CW that Curaçaon
drug dealers were afraid of selling drugs to U.S. buyers ever since
someone was arrested after selling to undercover law enforcement.
The CW told Alexander about the high price of heroin in Boston.
Alexander replied by suggesting that the three of them start a
business importing drugs into the United States and asked the CW
if he could supply two U.S. drug mules. These statements evidence
that Alexander knew the CW was American and the cocaine was
destined for the United States.
There was also ample evidence from the first and third
recorded conversations that Rosario-Jimenez knew where the cocaine
was going, and evidence both that Rosario-Jimenez and Alexander
had a long-standing business relationship and that they had talked
about the details of this particular deal in depth. Rosario-
Jimenez called her drug source in the CW's presence before going
to Alexander's house, saying "[y]ou remember what we were talking
about? That guy is here." She reassured the CW that doing the
- 16 - transaction at Alexander's house was safe because she and Alexander
do business together. When she left Alexander's house, Rosario-
Jimenez told the CW that she talked to Alexander for an hour to
convince him to participate in the cocaine deal. It would be
reasonable to infer that Rosario-Jimenez told Alexander where the
cocaine was going.
Since the evidence is sufficient to establish guilt
beyond a reasonable doubt, it is necessarily sufficient to
establish probable cause. His challenge to the validity of the
grand jury indictment also fails.
2. Federal Jurisdiction
Alexander argues the specific element of the charged
offense the government cannot prove is essential to the federal
courts' jurisdiction; therefore, because he did not know or intend
that the drugs would be imported into the United States, the
federal courts lack jurisdiction over his case. Under 21 U.S.C.
§ 959(c), the statute "reach[es] acts of manufacture or
distribution committed outside the territorial jurisdiction of the
United States."5 Alexander does not argue that this provision on
its face is deficient. Nor does he argue that it would be
improperly applied to him if he did, in fact, know the cocaine was
going to be imported into the United States. See Am. Fiber &
5 This language was moved to 21 U.S.C. § 959(d) in May 2016.
- 17 - Finishing, Inc. v. Tyco Healthcare Grp., LP, 362 F.3d 136, 139
(1st Cir. 2004) ("Federal courts are expected to monitor their
jurisdictional boundaries vigilantly and to guard carefully
against expansion . . . ."). Since the government can produce the
evidence required to support a conviction for drug conspiracy, the
federal courts have jurisdiction. Nothing about the facts of this
case raises any jurisdictional concerns.
3. Venue
"When [venue] is challenged, the government must prove
by a preponderance of the evidence that venue is proper as to each
individual count." Salinas, 373 F.3d at 163. At the time
Alexander was charged, 21 U.S.C. § 959(c) provided that "[a]ny
person who violates this section shall be tried in the United
States district court at the point of entry where such person
enters the United States, or in the United States District Court
for the District of Columbia." This language was eliminated when
§ 959 was amended in 2017. Venue now rests on 18 U.S.C. § 3238,
which provides that "trial of all offenses begun or committed . . .
out of the jurisdiction of any particular State or district, shall
be in the district in which the offender . . . is first brought."
Again, Alexander does not challenge the statutory basis for venue,
but merely argues that he did not, in fact, commit an offense at
all. This argument fails for the same reason his other challenges
fail.
- 18 - 4. Manufactured Jurisdiction
Alexander argues that "the Government engaged in
outrageous government misconduct by manufacturing Boston as the
destination for the cocaine" when "[t]he destination of Boston was
supplied only by the [CW]." "[T]he concept of manufactured
jurisdiction as a subset of the outrageous misconduct doctrine"
has "limited reach." United States v. Djokich, 693 F.3d 37, 45
(1st Cir. 2012).
Alexander must show that he was "coerced or unduly
induced" or "that the government engaged in some other type of
outrageous misconduct." Id. at 46. The evidence does not support
either argument. He was not coerced. There was no misconduct
here. The government merely provided Alexander the opportunity to
participate in the conspiracy, which he did.
III.
sentence, arguing that it is greater than necessary, especially in
light of the disparity between his sentence and that of his co-
defendant Rosario-Jimenez. Our review is for abuse of discretion.
See United States v. Vargas-García, 794 F.3d 162, 165 (1st Cir.
2015). We find none, and Alexander's argument fails.
A district court is instructed under 18 U.S.C.
§ 3553(a)(6) "to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
- 19 - similar conduct." This Court has said that this provision is
"primarily aimed at national disparities, rather than those
between co-defendants." United States v. Rivera-Gonzalez, 626
F.3d 639, 648 (1st Cir. 2010) (quoting United States v. Marceau,
554 F.3d 24, 33 (1st Cir. 2009)). Nonetheless, the district court
"can consider disparities between codefendants." United States v.
Reyes-Santiago, 804 F.3d 453, 467 (quoting United States v. Correa-
Osorio, 784 F.3d 11, 28 n.25 (1st Cir. 2015)).
A "defendant is not entitled to a lighter sentence
merely because his co-defendants received lighter sentences.”
Rivera-Gonzalez, 626 F.3d at 648 (quoting United States v. Wallace,
573 F.3d 82, 97 (1st Cir. 2009)). We "routinely reject[] disparity
claims" where the defendants "fail to acknowledge material
differences between their own circumstances and those of their
more leniently punished confederates." Reyes-Santiago, 804 F.3d
at 467. Such is the case here.
Alexander argues that his sentence is unreasonably long
when compared to Rosario-Jimenez's sentence because the quantity
of cocaine was the same in both cases, both defendants pleaded
guilty, and both were first-time offenders. In fact, the district
court explicitly discussed the disparity. It reduced Alexander's
sentence from the guideline range because of its comparison of the
two and the fact that Rosario-Jimenez received a lesser sentence.
And it stated its reasons for giving Alexander the higher sentence.
- 20 - Although Alexander and Rosario-Jimenez were charged with
the same offense, Alexander had a higher guideline range because
he had two levels added to his offense level pursuant to U.S.S.G.
§ 2D1.1(b)(1) for being found with a firearm when he was arrested.
Alexander's guideline range was 87 to 108 months' imprisonment;
Rosario-Jimenez's was 70 to 87 months' imprisonment. See United
States v. Peña-Santo, 809 F.3d 686, 705 (1st Cir. 2015) (noting
that the defendant was "not entitled to the same sentence as [his
codefendant]" in part because the co-defendant "received a minor
role reduction and [the defendant] did not").
In addition, the district court explained that Rosario-
Jimenez received a below-guideline sentence because "there were
certain personal issues and life history issues that [it] thought
were material to sentencing." The district court heard evidence
about Alexander's family and other personal circumstances. And
the court acknowledged those personal circumstances as a reason
for not imposing a higher sentence on Alexander than the one it
did. But the court concluded that Rosario-Jimenez's unique
personal circumstances that were the basis for her specific
sentence "don't generally apply to Mr. Alexander."
Specifically, Rosario-Jimenez suffered from a history of
physical and sexual abuse, domestic violence, mental health
issues, and substance abuse. Alexander grew up poor and was raised
by his sister from the age of ten in the Dominican Republic while
- 21 - his mother lived in Curaçao with a new husband. The district court
was not obligated to view Alexander's personal circumstances in
the same way it viewed Rosario-Jimenez's. See United States v.
Clogston, 662 F.3d 588, 593 (1st Cir. 2011) ("That the sentencing
court chose not to attach to certain of the mitigating factors the
significance that the appellant thinks they deserved does not make
the sentence unreasonable.")
Finally, Alexander argues that Rosario-Jimenez was more
culpable than Alexander because her "known individualized conduct
was much more substantial than Alexander's," thereby making his
relatively higher sentence more unreasonable. Cf. United States
v. Reverol-Rivera, 778 F.3d 363, 366 (1st Cir. 2015) ("[W]e have
made clear that differences in culpability can justify disparate
sentences among co-defendants.").
A significant part of the sentencing hearing was devoted
to discussing the two defendants' relative culpability. After
hearing from both lawyers, the district court accepted their
characterization of Rosario-Jimenez as the "driving force" behind
the cocaine transaction and allowed that Alexander was possibly
only a "broker" in this particular deal. Nonetheless, the district
court did not accept the defense's characterization of Alexander's
involvement in the drug trade as being limited to this one deal.
In assessing Alexander's culpability, the district court
considered the machine found in Alexander's house that was used to
- 22 - turn drugs into "eggs" that could then be smuggled by mules. The
court saw that as evidence that he was "preparing drugs for
distribution or importation to somewhere." Alexander also had a
weapon on his person, which the court saw as evidence that he was
familiar with the drug business. And the court judged that
Alexander was motivated to participate in drug transactions for
the money, not, like Rosario-Jimenez, because of a drug addiction.
There was no abuse of discretion in any of the district
court's analyses. The district court gave a "plausible rationale"
and reached "a defensible result." Vargas-García, 794 F.3d at
167. Alexander's challenge to the reasonableness of his sentence
is meritless. In particular, there is no merit to his argument
that the only rationale that the district court could have used
"is Alexander is a man and [Rosario-Jimenez] is a woman." The
court reasonably relied on Alexander's higher sentencing range,
facts about his personal life, and his level of culpability.
IV.
The district court's denial of Alexander's motion to
dismiss and the sentence imposed are affirmed.
- 23 -